Kaufman v. Kaufman, 1323-90-1

• Decision Date: 27 August 1991
• Docket Number: No. 1323-90-1,1323-90-1
• Citation: 12 Va.App. 1200,409 S.E.2d 1
• Parties: Steven Howard KAUFMAN v. Deborah Scott Barney KAUFMAN. Record
• Court: Virginia Court of Appeals

Page 1

409 S.E.2d 1

12 Va.App. 1200

Steven Howard KAUFMAN v. Deborah Scott Barney KAUFMAN.

Record No. 1323-90-1.

Court of Appeals of Virginia.

Aug. 27, 1991.

Jerrold G. Weinberg (Debra C. Albiston; Weinberg & Stein, Norfolk, on briefs), for appellant.

Henry M. Schwan, Norfolk, for appellee.

Present: KOONTZ, C.J., and BARROW and KEENAN ^*, JJ.

KOONTZ, Chief Justice.

Steven Howard Kaufman appeals a July 20, 1990 circuit court decree granting Deborah Scott Barney Kaufman child and spousal support, and an award of equitable distribution of the parties' marital property pursuant to Code § 20-107.3. Dr. Kaufman contends the trial court erred by (1) awarding Mrs. Kaufman both periodic and lump sum spousal support; (2) distributing the parties' non-pension marital property; (3) changing the valuation of Dr. Kaufman's stock in his medical professional corporation on remand; and (4) requiring him to pay interest on the present value of Mrs. Kaufman's share of his pension assets from August 9, 1984, the date of the last evidentiary hearing before the commissioner in chancery.

This case returns to us after it was affirmed in part, reversed in part, and remanded by our opinion in Kaufman v. Kaufman, 7 Va.App. 488, 375 S.E.2d 374 (1988). Initially, the trial court granted Mrs. Kaufman $900 monthly child support, $3,000 monthly spousal support, $34,000 lump sum spousal support, an equitable distribution award of $30,264, $14,780 in pension benefits when received, and attorney fees and costs. On appeal, we held the trial court erred by awarding spousal support before it determined what income from the monetary award would be available to Mrs. Kaufman. Id. at 493, 375 S.E.2d at 377. We remanded the matter with the direction that spousal support "be reconsidered in light of the need for such award and the ability to pay after the monetary awards have been determined." Id. at 493-94, 375 S.E.2d at 377. We also reversed the monetary award and directed the trial court on remand to reconsider the properties and their values, and to determine the amount of the monetary award, if any, to be made. Id. at 498, 375 S.E.2d at 379.

The facts underlying this case are fully presented in our first opinion. See Kaufman, 7 Va.App. 488, 375 S.E.2d 374. Therefore, we summarize the facts only as necessary to explain our decision here. The parties were married in 1973 and have one child born of the marriage in 1981. Dr. Kaufman left the marital home in 1982 and Mrs. Kaufman filed her bill of complaint seeking a divorce in 1983. Dr. Kaufman is a medical doctor specializing in pulmonary medicine. He was employed as a resident when the parties married. Mrs. Kaufman worked as an assistant manager of a clothing store during the first five years of the parties' marriage, but did not work during the remainder of the marriage. When this suit began, Dr. Kaufman's annual salary was approximately $120,000. The parties' home and furnishings were jointly owned and had a net value of approximately $35,325. The parties also owned $29,254 of non-pension marital property along with Mrs. Kaufman's jewelry, valued at $4,010. In pension marital property, Dr. Kaufman owned an Individual Retirement Account worth $2,000, a Profit Sharing Plan worth $20,060, and a Money Purchase Plan worth $7,500. Finally, Dr. Kaufman owned by purchase contract a one-third interest in Pulmonary Consultants of Tidewater, Inc. (Pulmonary), which the court initially found had a negative value of $8,051.

Following our remand to the trial court, the trial court determined that no evidentiary hearing was warranted or required to follow this Court's mandate. The parties submitted memoranda addressing the proper valuation date of the marital property, the appropriate date for determining the spousal and child support needs, the appropriateness and amount of a lump sum spousal support award, and the amount of the periodic spousal and child support awards. The trial court sent the parties several letters previewing its anticipated final determinations, to which the parties responded. After considering the parties' arguments and responses to its letters, the trial court issued its amended final decree dated July 20, 1990. Pursuant to the equitable distribution of the marital property, the trial court ordered Dr. Kaufman to transfer to Mrs. Kaufman his interest in the parties' house, furnishings and personalty located in the house while allowing Mrs. Kaufman to keep her jewelry "in full satisfaction of all obligations of [Dr. Kaufman] as to non-pension marital assets." In reaching its decision, the trial court changed its prior valuation of Dr. Kaufman's interest in Pulmonary from negative $8,051 to no monetary value. In total, Mrs. Kaufman was awarded more than one-half of the non-pension marital property. As part of the equitable distribution, the trial court awarded Mrs. Kaufman $14,780 as the present value of her share in Dr. Kaufman's pension plans, plus eight percent annual interest from the evidentiary hearing date of August 9, 1984. The trial court then awarded Mrs. Kaufman lump sum spousal support of $30,000, payable over six years in $5,000 annual installments, periodic spousal support of $2,796.85 per month, and child support of $730 per month. In conclusion, the court's amended decree stated that its prior decree of November 28, 1986, remains unchanged in all other respects and in full force "to all of which the parties object as their interests are adversely affected." However, neither party endorsed the amended final decree nor did they state any grounds for objection to the decree.

Initially, we address Mrs. Kaufman's Rule 5A:18 motion to dismiss based on Dr. Kaufman's failure to endorse the amended final decree or to state any grounds for objection to the decree. Upon review of the record, we find this case is controlled by Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991), where the trial court was presented several opportunities to rule on the issues presented, rather than Lee v. Lee, --- Va.App. ----, 404 S.E.2d 736 (1991), where the appellant only endorsed the court's order "Seen and Objected to" without specifying to the court his objections or the grounds therefor prior to or at the time of the entry of the order. Dr. Kaufman, despite his failure to endorse or to list his objections on the decree, made known to the trial court his position through his memoranda and other written correspondence with the court prior to the court's issuance of its amended final decree. See Weidman, 241 Va. at 44, 400 S.E.2d at 167. Furthermore, the trial judge specifically acknowledged the existence of Dr. Kaufman's objections by inserting in the decree the provision that "the parties object [to the court's determinations] as their interests are adversely affected." Hence, we find Dr. Kaufman afforded "the trial court an opportunity to rule intelligently on the issues presented thus avoiding unnecessary appeals and reversals." See id. Accordingly, we deny Mrs. Kaufman's motion to dismiss and address the merits of Dr. Kaufman's appeal.

On appeal, Dr. Kaufman first argues the trial court erred by awarding Mrs. Kaufman lump sum spousal support in addition to periodic spousal support.

Code § 20-107.1 provides that the trial court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments, or in a lump sum award, or both. The exercise of the trial judge's discretion will not be disturbed upon appeal unless it has been exceeded.

Blank v. Blank, 10 Va.App. 1, 4, 389 S.E.2d 723, 724 (1990).

With regard to how the court shall fashion an award of spousal support, the law's aim is to provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay.

Id. (citation omitted). In determining the appropriateness and amount of a lump sum award, trial courts must consider, in conjunction with those facts specified in Code § 20-107.1, the recipient spouse's need for such an award.

"Generally, when courts do make lump sum spousal support awards they do so because of special circumstances or compelling reasons," such as a payor spouse's future unwillingness or potential inability to pay period payments, or a payee spouse's immediate need for a lump sum to maintain herself or himself or satisfy debts. Blank, 10 Va.App. at 5, 389 S.E.2d at 725. Moreover, unlike periodic spousal support payments which are subject to modification upon a future change in circumstances, a lump sum award is a fixed obligation to pay a sum certain when the decree is entered whether payable immediately or either in deferred installments. "Thus, the right to the amount, whether payable immediately or in installments is fixed and vested at the time of the final decree and the amount is unalterable by [the trial] court order, remarriage, or death." Mallery-Sayre v. Mallery, 6 Va.App. 471, 475, 370 S.E.2d 113, 115 (1988). It necessarily follows that where the right of the recipient spouse to the amount of the lump sum is fixed and vested, the obligation of the payor spouse is also fixed and such spouse may not be relieved of it upon a change in circumstances or by the remarriage or death of the recipient spouse. Consequently, a court's selection of the method of awarding spousal support has considerable significance beyond the mere amount of the award. It is in this context that we find error in the court's award of a lump sum spousal support to Mrs. Kaufman.

Pursuant to the trial court's amended final decree, Mrs. Kaufman was awarded essentially the entire marital home and everything within it. Therefore, she did not need a lump sum of money to acquire a place to live. In light of the trial court's finding that she was unable to engage in compensable work due to the facts that she possessed a degree in English but lacked a teaching...